Torts Outline

Torts Outline

Fall 2009

I. General Principlesa. General Anatomy of a Torts Case

i. Act by Defendant

ii. Intent to commit the tort1. Purpose Test specific design

2. Knowledge Test must or should have known that a harmful or offensive result was substantially certain to occur

iii. Cause-in-fact

iv. Harm

b. Damages

i. Nominal

1. granted as a way to vindicate the plaintiffs rights

2. usually a minimal amount ($1)

ii. Compensatory

1. makes the plaintiff whole

2. generally covers the monetary value of the harm plaintiff suffered

iii. Punitive

1. meant to deter defendants conduct

2. awarded when there was malice present in the defendants conduct

II. Intentional Torts

a. Against the Person

i. Battery harmful or offensive contact

1. Act by defendant must be volitional2. Intent (Paul v. Holbrook, evidence of intent is usually circumstantial, like when the parties are at work)a. Purpose

b. Knowledge (Frey v. Kouf, intent does not have to be hostile; only to bring about a result that would invade the interest of another in a way the law forbids)

3. Cause-in-fact

4. Harmful or offensive contact (Fisher v Carrousel Motor, contact can still be offensive if made to an object held by plaintiff)

5. Damages

a. The above allow for nominal and, if there was malice, punitive damages

b. The above allow for compensatory damages if the act was the cause-in-fact of physical or nonphysical harm

ii. Assault reasonable apprehension of imminent harmful or offensive contact (Picard)

1. Act by defendant

a. Must be volitional

b. Castiglione v. Galpini. Plaintiffs sued for assault because defendant held a rifle while threatening them to leave his property

ii. Words alone do not constitute assault, but coupled with conduct, it is actionable

2. Intent

a. Purpose

b. Knowledge

3. Cause-in-fact

4. Reasonable apprehension of imminent harmful or offensive contact (McCraney v. Flanagan, where plaintiffs case was dismissed because she claims that she was assaulted while she was passed out drunk, which meant that she could not feel any apprehension about an imminent threat)

5. Damages



iii. False Imprisonment (Herbst v. Wuennenberg, defining false imprisonment as the intentional, unlawful, and unconsented restraint by one person of the physical liberty of another)

1. Act by defendant

a. by actual or apparent physical barriers

b. by overpowering physical force, or by submission to physical force

c. by submission to a threat to apply physical force to the others person immediately upon the others going or attempting to go beyond the area in which the actor intends to confine him

d. by submission to duress other than threats of physical force, where such duress is sufficient to make the consent given ineffective to bar the action (as by a threat to inflict harm upon a member of the others immediate family, or his property)

e. by taking a person into custody under an asserted legal authority

2. Intent

a. Purpose

b. Knowledge

3. Cause-in-fact

4. Confinement

5. Damages



iv. Intentional Infliction of Emotional Distress

1. Act by defendant

a. must be volitionalb. act by defendant must be so outrageous that it should not be tolerated by society

i. Miller v. Willbanks, where doctor continually accused plaintiff of using drugs, called social workers, and spread rumors about them, even when test results showed that plaintiff had not used drugs

ii. White v. Monsanto, where supervisor who had cursed out employees that he wrongfully believed were being idle was absolved because he was merely aggressively insisting on his own rights in a legally permissible way2. Intent to cause severe emotional distress (State Rubbish Collectors Association, recognizing damages for emotional pain and suffering resulting from a future threat of harm, even if there was no imminent threat of physical harm)

a. Purpose

b. Knowledge

3. Cause-in-fact

4. Severe emotional distress (Shephard, no physical harm required)

5. Damages


b. The above allow for compensatory damages if the act was the cause-in-fact of emotional distress or bodily harm that results

b. Against Property

i. Trespass to land1. Act by defendant

2. Intent to enter the land (Doughtery v. Stepp, where court stated that it doesnt matter if defendant knew whether the property was owned or not, only that he intended to enter onto those premises)

a. Purpose

b. Knowledge

3. Cause-in-fact

4. Interference with plaintiffs possessory right in real property

5. Damages

a. The above allow for nominal and, if there was malice, punitive damages (Jacque v. Steenberg Homes, punitive damages allowed even if there are no compensatory damages, so that property rights can be enforced against malicious entry even if there is no damage)

b. The above allow for compensatory damages if the act was the cause-in-fact of property damage or physical or nonphysical harm

ii. Trespass to chattel

1. Act by defendant

2. Intent to interfere with plaintiffs possessory right in personal property

a. Purpose test

b. Knowledge test

3. Cause in fact

4. Interference with plaintiffs possessory right in personal property; AND

5. Harm to plaintiff

a. Harm to property diminution in fair market value or cost of repair

b. Harm to person physical or emotional

iii. Conversion forcing the sale of the damaged item if the damage done is egregious (you break, you buy)

1. Act by defendant

2. Intent to appropriate

a. Purpose test

b. Knowledge test

3. Cause in fact

4. Appropriation

5. Damages determined by the fair market value of the chattel at the time of the tort


b. The above allow for compensatory damages if the act was the cause-in-fact of physical or nonphysical harm to plaintiff

c. Affirmative Defenses

i. Consent

1. Typesa. Express

i. Verbal Ashcraft v. King, where doctor and patient disputed whether patients consent to a blood transfusion was conditioned on using family blood only

ii. Written Perkins v. Lavin, where hospital disregarded plaintiffs written request not to have a male present at her c-section

b. Implied-in-fact consent by conduct (hard to prove)

c. Implied-in-law Shine v. Vega, where consent may be implied in an emergency room IF getting consent from victim or a relative is not possible because of time or situational restraints

2. Consent to a legal act was act by defendant within scope of plaintiffs consent? If so, was consent voided?a. Hogan v. Tavzel, plaintiff consented to sex with defendant, but defendant failed to inform her that he had an STD, which led judge to conclude that consent to sex was not consent to being infected with an STD

i. Consent can be voided if there was fraud, mistake, or duress

ii. Consent can be voided due to incompetency

b. McAdams v. Windham, voluntary participation in risky activities such as boxing implies that both participants assumed the risk of their activity3. Consent to an illegal act

a. Majority Rule

i. consent to an illegal act is void and does not bar recovery, unless consent is a defense in criminal law

ii. Teolis v. Moscatelli1. plaintiff and defendant agreed to a fistfight, and defendant stabbed the plaintiff

2. court ruled that since the fistfight was illegal in the first place, consent to it did not bar recovery

b. Minority Rule

i. Consent to an illegal act is a valid defense

ii. McNamee v. AJW1. Plaintiff and defendant, both minors, got drunk and high and had sex while plaintiff blacked out, and plaintiffs parents sued soon after for damages2. court ruled that plaintiff voluntarily engaged in the act, which barred recovery

c. Compromise Rule

i. Consent to an illegal act does not bar recovery, but may be considered to mitigate the amount of damages

ii. Bishop v. Liston1. Plaintiff, 17-years-old, claims that defendant, 51-years-old, snuck into her room and raped her, but defendant claims that she consented

2. Court ruled that consent does not bar recovery, but may be considered to mitigate damages

ii. Justification

1. Self-defense

Documents

Torts Outline